People v. Powell

207 A.D.3d 760

170 N.Y.S.3d 908 (Mem)

PEOPLE of State of New York, respondent,

v.Douglas POWELL, appellant.

2019–10113

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 13, 2022

July 27, 2022

Patricia Pazner, New York, NY (David Fitzmaurice of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Elise Bonine of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), dated August 14, 2019, which, after a hearing upon remittitur from this Court (see People v. Powell, 173 A.D.3d 1228, 100 N.Y.S.3d 911 ), designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 105 points, denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender (see Correction Law § 168–n ). The defendant appeals.

Contrary to the defendant's contention, he failed to establish his entitlement to a downward departure. A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).

Here, the defendant failed to establish by a preponderance of the evidence that his response to sex offender treatment and efforts at rehabilitation were of such a degree as to constitute a legitimate mitigating factor (see People v. Ramos, 186 A.D.3d 511, 512, 126 N.Y.S.3d 381 ; People v. Patterson, 185...